Repeated Intentional Infliction of Minor Harm to Health

1. General Characteristics of the Criminal Law Provision

Article 108-1 of the Criminal Code of the Republic of Kazakhstan establishes liability for the intentional infliction of minor harm to health.

Part One provides for liability for the basic offence:

intentional infliction of minor harm to health.

Part Two provides for qualified offences, including the commission of the same act:

1. against two or more persons;
2. against a person or their close relatives in connection with that person's performance of official duties or professional or public obligations;
3. with particular cruelty or against a person known to be in a helpless condition or in a state of material or other dependence;
4. by a group of persons or by a group of persons acting pursuant to a prior conspiracy;
5. out of hooligan motives;
6. on the grounds of social, national, racial or religious hatred or enmity;
7. repeatedly;
8. against a person known to be a minor.

Part Two of Article 108-1 of the Criminal Code provides for a fine of up to 1,000 monthly calculation indices, corrective labour in the same amount, community service for up to 600 hours, restriction of liberty for up to two years, or deprivation of liberty for the same period. (Zakon i Pravo)

Thus, the qualifying element of “repeatedly” does not relate to the characteristics of the victim, the method of inflicting harm, or the motive of the perpetrator, but primarily to the multiplicity of independent criminal offences of the same type.

The key provision for clarifying the meaning of “repeatedly” is Article 12 of the Criminal Code of the Republic of Kazakhstan.

Under Part One of Article 12 of the Criminal Code, repetition is recognised as the commission of two or more acts provided for by one and the same article or part of an article of the Special Part of the Criminal Code.

In this regard:

• a crime and a criminal misdemeanour do not constitute repetition in relation to one another;
• if a person has already been convicted or lawfully released from criminal liability for a previous criminal offence, a new act does not constitute repetition;
• a continuing criminal offence consisting of a series of homogeneous acts united by a single intent and purpose is also not recognised as repetition. (Zakon i Pravo)

It is precisely the distinction between repetition, the aggregate of criminal offences, and a continuing criminal offence that constitutes the central issue in applying Subparagraph 7) of Part Two of Article 108-1 of the Criminal Code.

2. The Object of the Criminal Offence

The immediate object is human health as a social interest protected by criminal law.

The physical inviolability of the individual is additionally protected.

The constitutional basis for criminal law protection includes, in particular:

• Article 13 of the Constitution — the right to judicial protection;
• Article 16 — the right to personal liberty;
• Article 17 — the inviolability of human dignity and the prohibition of torture, violence, and cruel or degrading treatment;
• Article 77 — the principles governing the administration of justice.

The Constitution expressly provides that everyone has the right to judicial protection of their rights and freedoms and to qualified legal assistance. (Zakon i Pravo)

The international legal component is based, in particular, on Articles 7 and 14 of the International Covenant on Civil and Political Rights.

Article 14 of the Covenant guarantees everyone, in the determination of a criminal charge, the right to a fair and public hearing by a competent, independent and impartial court. (Zakon i Pravo)

The Universal Declaration of Human Rights provides for the right to an effective remedy by competent national tribunals for violations of fundamental rights (Article 8), the prohibition of arbitrary arrest or detention (Article 9), and the right to a fair trial (Article 10). (Zakon i Pravo)

Where harm to health is inflicted, the constitutional prohibition of violence and degrading treatment is also of particular importance.

3. The Concept of “Minor Harm to Health”

For qualification under Article 108-1, it is necessary to establish specifically minor harm to health, rather than merely physical pain.

Article 3 of the Criminal Code of the Republic of Kazakhstan defines minor harm to health as harm that results in:

• a short-term health disorder lasting no more than 21 days;
• or a minor permanent loss of general working capacity amounting to less than one-tenth. (Zakon i Pravo)

Consequently, the presence of:

• bruises;
• abrasions;
• scratches;
• contusions;
• haematomas;
• pain

does not, in itself, automatically establish the elements of the offence under Article 108-1 of the Criminal Code.

It is necessary to determine the legally significant medical outcome.

For this reason, forensic medical examination is of particular evidentiary importance in cases involving harm to health.

The Supreme Court has drawn attention to the need to determine the degree of harm to health through an appropriate expert examination. Judicial practice also emphasises that the severity of the harm is established by an expert opinion. (Zakon i Pravo)

4. The Objective Element

The objective element of the basic offence includes:

1. an unlawful act;
2. the infliction of minor harm to health;
3. a causal link between the perpetrator's act and the harm;
4. the actual occurrence of the result prescribed by law.

Typical acts include:

• striking with a hand;
• kicking;
• striking with an object;
• pushing that results in harm prescribed by law;
• other forms of physical impact.

For qualification under Subparagraph 7) of Part Two of Article 108-1, it is additionally necessary to establish at least two independent criminally punishable episodes that have the relationship required by law.

5. The Main Question: What Does “Repeatedly” Mean?

Article 12 of the Criminal Code is of fundamental importance.

Under Part One of this Article:

repetition is recognised as the commission of two or more acts provided for by one and the same article or part of an article of the Special Part of the Criminal Code.

At the same time, Part Two of Article 12 establishes a fundamental exception:

if a person has been convicted or released from criminal liability for a previously committed criminal offence, a new act does not constitute repetition. (Zakon i Pravo)

Two fundamentally different scenarios follow from this.

Scenario No. 1

On 1 January, a person inflicted minor harm to a victim's health.

Before the first case was finally resolved, the person committed a second similar act on 10 January.

In such a case, provided that both independent episodes are proven, qualification under Subparagraph 7) of Part Two of Article 108-1 may be possible.

Scenario No. 2

A person was convicted for the first incident of inflicting minor harm to health.

After the judgment entered into legal force, the person committed a new act.

The second act does not automatically become “repeated” under Article 12 of the Criminal Code.

The previous conviction excludes the element of repetition.

Depending on the specific circumstances, the consequences of the first judgment may be relevant to the institution of recidivism, sentencing, and other criminal law issues, but these constitute a different legal institution.

6. Repetition and a Continuing Criminal Offence

Part Three of Article 12 of the Criminal Code specifically excludes a continuing criminal offence from the concept of repetition.

A continuing criminal offence is characterised by:

• several homogeneous acts;
• a single intent;
• a single purpose;
• a direction towards implementing a single criminally unlawful intention.

Therefore, the mechanical rule:

“two blows = repetition”

is legally incorrect.

For example, if a person strikes a victim five times during a single conflict, acting within a single intent to inflict harm to health, this will generally be regarded as one incident, rather than five independent criminal offences.

A completely different situation arises where:

on 10 January, a person intentionally inflicted minor harm to A's health;

on 20 January, after the first conflict had ended, the person again intentionally inflicted minor harm to A's health.

In this case, grounds arise for analysing the element of repetition.

7. Repetition and the Aggregate of Criminal Offences

The following concepts must be distinguished:

Repetition

Several acts of the same type which, in cases provided for by law, constitute a qualified offence.

Aggregate of criminal offences

The commission of two or more criminal offences provided for by different articles or by different independent sets of elements of criminal offences.

Continuing criminal offence

Several acts united by a single intent and purpose which, in legal terms, constitute one criminal offence.

In practical terms, this means that qualification cannot be based solely on the number of victims or the number of bodily injuries.

It is necessary to establish:

• how many incidents occurred;
• when they occurred;
• where they occurred;
• who participated;
• whether the conflict was a single continuous event;
• whether there was a single intent;
• whether the intent ceased;
• whether a new intent arose;
• whether harm was inflicted independently;
• whether an interim judicial decision had been issued;
• whether there had been a release from criminal liability.

8. The Subjective Element

Article 108-1 requires the intentional infliction of harm.

Consequently, it is necessary to establish intent as the form of guilt.

Depending on the factual circumstances, the following may be examined:

• direct intent;
• awareness of the nature of the physical impact;
• foresight of the possibility of causing harm;
• the desire for, or conscious acceptance of, the relevant result.

At the same time, it is not permissible to automatically equate:

the desire to strike

with

the desire to cause a specific type of harm to health.

The court must establish the content of the intent, taking into account:

• the method of striking;
• the object used;
• the force of the impact;
• the part of the body struck;
• the number of blows;
• the person's conduct before and after the incident;
• the relationship between the parties;
• the statements made by the accused;
• the nature of the injuries.

9. The Specific Nature of the Qualifying Element of “Repetition”

For an accusation under Subparagraph 7) of Part Two of Article 108-1, it is insufficient merely to prove that:

“the accused had previously had conflicts with the victim.”

It is necessary to prove legally significant independent episodes.

The accusation should specify:

• the date of the first episode;
• the location;
• the victim;
• the specific acts;
• the consequences;
• the expert opinion;
• the date of the second episode;
• the location;
• the victim;
• the acts;
• the consequences;
• the absence of a final decision concerning the first episode at the time of the second act;
• the causal link for each episode.

10. Where the First Episode Was Already Terminated Due to Reconciliation

This is one of the most important practical situations.

Part Two of Article 12 of the Criminal Code expressly provides:

if a person was previously released from criminal liability, a new act does not constitute repetition.

At the same time, Part Four of Article 68 of the current Criminal Code contains a specific restriction concerning Articles 108-1 and 109-1.

Article 68 provides for release from criminal liability in connection with reconciliation with the victim and reparation of the harm caused.

However, the legislature has specifically established that the provisions of Article 68 do not apply to a person who commits a criminal offence under Article 108-1 or 109-1 within the limitation period after having previously been released from criminal liability in connection with reconciliation for an earlier criminal offence. (Zakon i Pravo)

This results in an important legal construction:

previous reconciliation excludes repetition under Article 12, but may simultaneously exclude a subsequent release from criminal liability under Article 68.

These are different legal consequences.

11. Category of Crime

Part Two of Article 108-1 of the Criminal Code provides for a maximum punishment of deprivation of liberty for up to two years.

Under Part Two of Article 11 of the Criminal Code, an intentional crime for which the maximum punishment does not exceed two years of deprivation of liberty is classified as a crime of minor gravity.

Consequently, Part Two of Article 108-1 falls within the category of crimes of minor gravity. (Zakon i Pravo)

This is of great importance for:

• limitation periods;
• reconciliation;
• sentencing;
• the possibility of applying other grounds for release from criminal liability;
• procedural arrangements.

12. Limitation Period for Criminal Prosecution

The following must not be confused:

1. the limitation period for bringing a person to criminal liability;
2. the limitation period for filing a civil claim;
3. procedural deadlines for filing a private complaint;
4. deadlines for appealing a judgment.

The relevant limitation period established by Article 71 of the Criminal Code applies to a crime of minor gravity.

Under the current system of limitation periods, the limitation period for a crime of minor gravity is two years. (Zakon i Pravo)

The period is calculated from the moment the criminal offence is committed until the judgment enters into legal force, taking into account the special rules of Article 71 of the Criminal Code.

Therefore, the date of each episode must be established separately in the case.

13. Jurisdiction

13.1. Court of First Instance

Under Article 306 of the Criminal Procedure Code, district courts and courts equated to them act as courts of first instance.

They have jurisdiction over all criminal cases, except those assigned by the Criminal Procedure Code to specialised courts. (Zakon i Pravo)

An ordinary criminal case under Part Two of Article 108-1, in the absence of special grounds, falls within the jurisdiction of a district court or a court equated to it.

The case is heard by a single judge.

14. Territorial Jurisdiction

The principal rule is established by Article 314 of the Criminal Procedure Code:

a criminal case is heard by the court at the place where the criminal offence was committed.

If the act began in one place and was completed in another, a special rule applies.

If the place of commission cannot be determined, or if the criminal offences were committed in different places, the rule concerning the place where the investigation was completed applies. (Zakon i Pravo)

This is of particular importance in cases involving several episodes under Subparagraph 7) of Part Two of Article 108-1.

For example:

• first episode — Almaty;
• second episode — Kaskelen.

If they are joined in a single criminal case, the rules for determining jurisdiction in cases involving multiple offences and the joinder of criminal cases must be applied.

15. Where the Charge Was Initially Incorrectly Classified as a Private Prosecution Case

This is a very important practical issue.

Part One of Article 108-1 concerns cases of private-public prosecution.

Part Two of Article 108-1 is not included in the list contained in Part Three of Article 32 of the Criminal Procedure Code.

Therefore, Part Two of Article 108-1 concerns public prosecution.

Article 32 of the Criminal Procedure Code expressly provides that:

• Part One of Article 108-1 — private-public prosecution;
• other offences not specified in Parts Two and Three of the Article — public prosecution. (Zakon i Pravo)

Consequently, where the qualifying element of “repetition” is present, the case must not be artificially converted into a private prosecution case.

16. Allocation of Jurisdiction

In criminal proceedings, the term “allocation of jurisdiction” is used differently than in civil or administrative proceedings.

In this context, it is more appropriate to refer to:

• criminal jurisdiction;
• investigative jurisdiction;
• judicial jurisdiction.

In cases under Part Two of Article 108-1, pre-trial proceedings are conducted by criminal prosecution authorities.

Article 191 of the Criminal Procedure Code provides for pre-trial investigation in the form of an inquiry conducted by internal affairs bodies, including in cases under Part Two of Article 108-1 of the Criminal Code. (Zakon i Pravo)

17. Pre-Trial Procedure

For offences under Part Two of Article 108-1, it is not necessary to apply directly to the court in advance with a private prosecution complaint.

This is a fundamental distinction from Part One of Article 108-1.

Public prosecution proceedings are conducted regardless of whether the victim wishes to pursue the accusation independently.

In practice, the procedure is as follows:

1. reporting the offence;
2. registration in the Unified Register of Pre-Trial Investigations;
3. urgent procedural actions;
4. pre-trial investigation;
5. forensic medical examination;
6. interrogations;
7. collection of video recordings and other evidence;
8. identification of all episodes;
9. establishment of the element of repetition;
10. completion of pre-trial proceedings;
11. referral of the case to court;
12. judicial examination.

18. Comparison of Parts One and Two of Article 108-1

19. Reconciliation Procedures

19.1. Article 68 of the Criminal Code

Article 68 of the Criminal Code provides for release from criminal liability in connection with reconciliation.

The main conditions are:

1. the relevant category of criminal offence;
2. reconciliation;
3. reparation of the harm caused.

Reconciliation may take place:

• directly;
• through mediation.

Article 68 expressly provides for the application of reconciliation to crimes of minor and medium gravity. (Zakon i Pravo)

Since Part Two of Article 108-1 concerns crimes of minor gravity, the application of the reconciliation mechanism is, in principle, possible.

20. Repetition Does Not, in Itself, Exclude Reconciliation

This is a particularly important position of the Supreme Court.

In its regulatory resolution on the application of Article 68, the Supreme Court stated that Part One of Article 68 may be applied regardless of whether the act was committed:

• for the first time;
• under circumstances involving repetition;
• as part of an aggregate of criminal offences;
• in circumstances involving recidivism.

In other words, repetition, in itself, is not an absolute prohibition on the application of Article 68. (Zakon i Pravo)

However, it is necessary to take into account the specific restriction directly established in Article 68 for the subsequent commission of an offence under Article 108-1 or 109-1 after a previous release from criminal liability in connection with reconciliation.

 Below is the English translation, preserving the original numbering, structure, legal terminology, wording, and links without intentional omissions or changes.

21. Redress of Harm

Reconciliation alone is insufficient.

It is also necessary to establish that the harm has been redressed.

The Supreme Court explains that redress of harm must be:

• actual;
• carried out before the decision on release from criminal liability is adopted;
• confirmed by the case materials.

A promise to compensate for harm in the future, by itself, does not constitute sufficient grounds. (Zakon i Pravo)

For example:

“I will pay the victim after the case is terminated”

is not equivalent to:

“the harm has actually been compensated.”

22. Mediation

Mediation may be used as a means of achieving reconciliation.

It does not replace the legal requirement to redress the harm.

Therefore, a mediation agreement must be analysed in terms of:

• voluntariness;
• the content of the obligations;
• actual performance;
• the amount of compensation;
• the absence of a dispute regarding the harm.

The Supreme Court separately emphasises that the existence of a dispute regarding the scope of compensation indicates that reconciliation, in the sense required by Article 68, has not taken place. (Zakon i Pravo)

23. Persons Participating in the Proceedings

The following persons may participate in public criminal proceedings:

On the prosecution side:

• prosecutor;
• victim;
• victim’s representative;
• civil claimant;
• representative of the civil claimant;
• investigator/inquiry officer at the pre-trial stage;
• expert;
• specialist;
• witnesses.

On the defence side:

• suspect;
• accused;
• defendant;
• defence counsel;
• legal representative — where grounds exist;
• civil defendant;
• representative of the civil defendant.

24. Victim

The victim is an independent participant in the proceedings.

The victim has the right to:

• give testimony;
• submit evidence;
• file motions;
• examine the case materials in accordance with the established procedure;
• receive assistance from a representative;
• file a civil claim;
• appeal procedural decisions;
• participate in the judicial examination of the case;
• declare reconciliation.

In cases involving the infliction of minor harm, the victim’s testimony often has substantial significance.

However, it must not be considered in isolation.

25. Private Prosecutor

The institution of a private prosecutor under Article 72 of the Criminal Procedure Code fundamentally relates to private prosecution.

Article 72 defines a private prosecutor as a person who has filed a complaint with the court in a private prosecution case and supports the prosecution. (Zakon i Pravo)

Therefore, under Part 2 of Article 108-1, the victim does not automatically become a “private prosecutor” merely because the victim filed the initial statement with the police.

The victim remains a victim in public criminal proceedings.

26. Evidence

In cases under Part 2 of Article 108-1, the subject matter of proof can be conditionally divided into five blocks.

Block 1. The Event

The following must be proven:

• the fact of physical force being applied;
• the time;
• the place;
• the method.

Block 2. The Consequence

The following must be proven:

• the existence of harm;
• its degree;
• its compliance with the criteria for minor harm.

Block 3. Causation

It must be established that the accused’s actions specifically resulted in the relevant injury.

Block 4. Intent

The intentional nature of the conduct must be established.

Block 5. Repeated Commission

The following must be proven separately:

• at least two independent episodes;
• the same criminal-law orientation;
• the independent nature of each episode;
• the absence of a final conviction or release from liability for the first episode;
• the absence of signs of a continuing offence.

27. Forensic Medical Examination

An expert examination is of key importance for this category of cases.

The expert must establish:

• the nature of the injuries;
• the mechanism by which they were caused;
• their age;
• the degree of harm;
• whether the injuries correspond to the alleged mechanism.

It is particularly important not to substitute a medical assessment for a legal assessment.

The expert establishes the medical circumstances.

The court provides the legal classification.

For example, an expert may establish that:

the bodily injury meets the criteria for minor harm to health.

However, only the court determines whether:

it has been proven that the defendant intentionally caused this injury.

28. Video Recordings

The following may be of practical significance:

• surveillance cameras;
• mobile phone recordings;
• dashcam recordings;
• recordings from building entrances;
• shop cameras;
• parking lot camera recordings;
• public transport camera recordings.

Video recordings are of particular importance when testimony conflicts.

For example, the victim claims:

the accused struck five blows.

The video shows:

one blow.

In such a case, the court must compare:

• testimony;
• video;
• the expert’s report;
• other evidence.

29. Witness Testimony

Witnesses are particularly important if they:

• directly observed the conflict;
• saw the beginning and the end of the conflict;
• were nearby;
• heard threats;
• saw the consequences.

However, the source of the information must be established.

A witness who says:

“The victim told me”

has a substantially different evidentiary significance from a witness who says:

“I personally saw the accused strike the victim.”

30. Supreme Court Practice on the Sufficiency of Evidence

An illustrative example is material published on Zakonpravo concerning a case in which the Supreme Court analysed contradictions between victims’ testimony and other evidence.

The Supreme Court emphasised the need to:

• analyse testimony;
• compare it with other evidence;
• resolve contradictions;
• provide reasons explaining why certain testimony is accepted and other testimony is rejected.

A judgment of conviction cannot be based on assumptions. (Zakon i Pravo)

Although the specific case concerned a more serious charge, the approach formulated has direct evidentiary significance for cases under Article 108-1 as well.

31. Article 125 of the Criminal Procedure Code — Assessment of Evidence

Article 125 of the Criminal Procedure Code establishes four key criteria:

1. relevance;
2. admissibility;
3. reliability;
4. sufficiency of the body of evidence.

The court must assess the evidence as a whole. (Zakon i Pravo)

Consequently, in a case under subparagraph 7) of Part 2 of Article 108-1, a conclusion regarding repeated commission cannot be drawn solely because the victim stated:

“he had beaten me before.”

It is necessary to verify:

• exactly when the first episode occurred;
• what evidence confirms it;
• whether a medical examination was conducted;
• whether an expert report exists;
• whether there are witnesses;
• whether a statement was filed;
• whether the incident was registered;
• whether a procedural decision was adopted;
• whether there had previously been a conviction or release from liability in relation to that incident.

32. Proving the First Episode

This is one of the most difficult parts of the prosecution’s case.

The previous episode may be confirmed by:

• materials from another criminal case;
• a registration order;
• interrogation records;
• an expert’s report;
• medical documents;
• video;
• photographs;
• messages;
• audio recordings;
• witness testimony;
• the accused’s admission;
• other admissible evidence.

However, it must be established that the first episode itself contains the elements of precisely the criminal offence required for repeated commission.

33. If the First Episode Has Not Been Proven

Suppose:

the accused is charged with:

15 January — striking Person A;

20 January — striking Person A.

For the second episode, the expert examination confirms minor harm.

However, for the first episode:

• there is no expert examination;
• medical documentation is absent;
• witnesses do not confirm the blow;
• the victim changes their testimony.

In such a case, a substantial question arises:

has the very basis for the qualifying element of “repeated commission” been proven?

The court is not entitled to proceed on the assumption that the first episode occurred in precisely the form legally required.

34. The Problem of “Previously Held Liable”

A very common mistake is:

“The person was previously held liable — therefore, the offence was committed repeatedly.”

This is incorrect.

It must be established that the person committed two or more corresponding acts, rather than merely having had a conflict with the police.

Furthermore, Part 2 of Article 12 of the Criminal Code expressly excludes repeated commission if, for the previously committed offence, the person:

• was convicted;
• or was released from criminal liability.

(Zakon i Pravo)

35. Measures of Procedural Coercion

Depending on the circumstances, such measures include:

• detention;
• compulsory appearance;
• monetary penalty;
• undertaking to appear;
• preventive measures;
• other measures provided for by the Criminal Procedure Code.

However, the principle of proportionality must be observed.

Article 128 of the Criminal Procedure Code defines the detention of a suspect as a measure of procedural coercion and establishes the grounds for its application. As a general rule, the period of detention may not exceed 72 hours. (Zakon i Pravo)

The Constitution also enshrines the right to personal liberty and establishes a 72-hour limit on detention without court authorisation. (Zakon i Pravo)

36. Is Remand in Custody Necessary under Part 2 of Article 108-1?

The mere fact that the offence is classified under Part 2 of Article 108-1 does not automatically mean that remand in custody is necessary.

The maximum penalty is up to two years of imprisonment.

Consequently, when selecting a preventive measure, the following must be taken into account:

• the seriousness of the charge;
• the risk of absconding;
• the risk of obstructing the proceedings;
• the possibility of exerting pressure on the victim or witnesses;
• the risk of committing a new criminal offence;
• personal circumstances and background;
• other circumstances provided for by the Criminal Procedure Code.

At the same time, the Constitution requires judicial oversight of arrest. (Zakon i Pravo)

37. International Standards in the Application of Coercive Measures

Article 9 of the International Covenant on Civil and Political Rights prohibits arbitrary arrest or detention.

Article 14 establishes the right to a fair trial. (Zakon i Pravo)

In its decisions, the Constitutional Court of the Republic of Kazakhstan also links national rules on preventive measures with international standards concerning liberty and personal inviolability. (Zakon i Pravo)

38. Civil Claim in Criminal Proceedings

Article 166 of the Criminal Procedure Code expressly permits the consideration of civil claims in criminal proceedings for:

• compensation for property damage;
• moral harm;
• medical treatment expenses;
• funeral expenses;
• other expenses provided for by law;
• expenses related to participation in criminal proceedings, including representation expenses. (Zakon i Pravo)

Therefore, the victim does not necessarily have to wait until the criminal case has concluded before bringing civil claims.

39. Moral Harm

In a case involving the infliction of minor harm to health, the victim may raise the issue of compensation for moral harm.

At the same time, the court must establish:

• the fact of a violation of a personal non-property right;
• physical suffering;
• mental suffering;
• causation;
• the circumstances in which the harm was caused;
• the degree of suffering;
• other legally significant circumstances.

The court must not automatically award the claimed amount merely because the accused has admitted causing the harm.

40. State Duty

This is a separate important issue.

When a civil claim is brought within the framework of a criminal case, the victim, acting as a civil claimant, is exempt from paying the state duty.

This is expressly explained by the Supreme Court in its regulatory resolution “On the Consideration of a Civil Claim in Criminal Proceedings.” (Zakon i Pravo)

If the claim is granted in full or in part, the issue of recovering the state duty from the defendant is resolved by the court in the judgment of conviction.

41. If the Civil Claim Is Brought Separately in Civil Proceedings

The situation is different in this case.

As of 1 January 2026, the new Tax Code dated 18 July 2025, No. 214-VIII, is in force.

The rates of state duty payable in courts are provided for in Article 665 of the Tax Code.

For claims of a property-related nature:

• individuals — 1% of the amount claimed;
• legal entities — 3%.

A separate rate of 0.5 monthly calculation indices is provided for non-property claims, where the relevant subparagraph of the Article applies. (Zakon i Pravo)

Therefore, it is fundamentally important to distinguish between:

a civil claim within a criminal case

and

an independent civil claim following criminal proceedings.

42. Jurisdiction over a Civil Claim within a Criminal Case

The jurisdiction over a civil claim brought in criminal proceedings is determined by the jurisdiction of the criminal case.

This is expressly explained by the Supreme Court. (Zakon i Pravo)

Thus, if the criminal case is considered by a district court, the civil claim is considered by the same court.

43. Time Limit for Bringing a Civil Claim

Two different regimes must be distinguished.

First regime

The civil claim is brought directly within the criminal proceedings.

In this case, it is considered in accordance with the Criminal Procedure Code.

Second regime

The civil claim is brought separately under the rules of civil procedure.

In that case, the limitation rules of the Civil Code apply.

Under Article 178 of the Civil Code, the general limitation period is three years. (Zakon i Pravo)

44. The Limitation Period Is Not Applied Automatically

Under Article 179 of the Civil Code:

• a claim is accepted by the court regardless of the expiry of the limitation period;
• the limitation period is applied only at the request of a party;
• the request must be made before the court renders its decision;
• the expiry of the limitation period before the claim is filed constitutes grounds for dismissing the claim if the corresponding request has been made. (Zakon i Pravo)

Therefore, the court must not independently act in place of a party and apply the limitation period without the corresponding request where the law requires such a request.

45. Restoration of the Limitation Period

Article 185 of the Civil Code provides for the possibility of restoring the limitation period in exceptional cases.

The reasons must be related to the claimant personally, for example:

• serious illness;
• a helpless condition;
• illiteracy;
• other similar circumstances.

At the same time, the relevant circumstances must have occurred during the last six months of the limitation period or, if the limitation period is six months or less, throughout the entire period during which that limitation period ran. (Zakon i Pravo)

46. Practice Regarding Restoration of Time Limits: An Important Conclusion

Judicial practice demonstrates that restoration of a time limit must not be a mere formality.

The statement:

“the claimant did not know the law”

is generally not equivalent to an objective impossibility of bringing a claim.

It is necessary to submit evidence:

• medical documents;
• documents confirming a helpless condition;
• evidence of the objective impossibility of bringing a claim;
• documents confirming presence outside the country, where the relevant circumstances apply;
• documents confirming the actual absence of an opportunity to exercise the right.

At the same time, a person’s обращения to state authorities may sometimes be assessed in the context of the reasons for missing the time limit, if such actions objectively demonstrated an attempt to protect a violated right. Judicial practice in other categories of disputes demonstrates that whether a reason is valid is assessed in light of the specific circumstances of the case, rather than formally. (Zakon i Pravo)

47. Important Distinction: Limitation Period for Criminal Prosecution and Civil Limitation Period

These are different legal institutions.

Criminal limitation period

It is governed by the Criminal Code.

For a minor offence, the relevant period under Article 71 of the Criminal Code applies.

Civil limitation period

It is governed by the Civil Code.

The general period is three years.

Therefore, one cannot state:

“Since the criminal limitation period is two years, a civil claim may only be brought within two years.”

The law does not establish such an automatic conclusion.

48. Evidence of the Amount of Moral Harm

In practice, it is recommended to collect:

• medical documents;
• information about treatment;
• documents concerning temporary incapacity for work;
• photographs of injuries;
• information about psychological consequences;
• documents confirming the purchase of medicines;
• receipts;
• witness testimony;
• correspondence;
• other documents confirming the consequences.

However, it is necessary to distinguish between:

evidence of the harm itself

and

evidence of its monetary valuation.

49. Supreme Court Judicial Practice Regarding Civil Claims

The Supreme Court has repeatedly indicated that, in order to grant a civil claim, it is necessary to establish:

1. the fact of the criminal offence;
2. the person’s guilt or another ground provided for by law;
3. causation;
4. the nature of the harm;
5. the amount of the harm.

The defendant’s admission of the claim alone is insufficient. (Zakon i Pravo)

This is particularly important in relation to moral harm.

50. Referral of the Amount of a Civil Claim to Civil Proceedings

If the right to have the claim granted has been proven, but it is impossible to determine the amount precisely without postponing the criminal proceedings, the court may recognise the right to have the claim granted and refer the question of the amount to civil proceedings.

This approach is expressly provided for in the Supreme Court’s clarifications. (Zakon i Pravo)

This is an important instrument for the victim.

For example:

• the fact that harm was caused has been proven;
• liability has been established;
• however, the final treatment expenses are not yet known.

In such a case, the court may resolve the issue of the right without postponing the criminal case for an indefinite period.

51. Supreme Court Judicial Practice: Private Prosecution as a Comparable Procedural Reference Point

Although Part 2 of Article 108-1 relates to public prosecution, the practice concerning private prosecution is important for understanding:

• the assessment of complaints;
• evidence;
• jurisdiction;
• reconciliation;
• determination of the nature of the harm.

The Supreme Court’s Regulatory Resolution No. 13 dated 25 December 2006 contains clarifications concerning private prosecution cases. (Zakon i Pravo)

However, its provisions must be applied taking into account the public nature of Part 2 of Article 108-1.

52. Judicial Practice Regarding the Incorrect Determination of the Procedural Procedure

Zakonpravo provides judicial practice materials drawing attention to situations in which a statement contains signs of minor harm but also signs of other offences, such as hooliganism or other public-prosecution crimes.

In such cases, the criminal prosecution authority must correctly determine the procedural form and must not limit itself to formally forwarding the material to the court. (Zakon i Pravo)

This is particularly important for Part 2 of Article 108-1.

If the person’s actions additionally indicate:

• hooliganism;
• a threat;
• unlawful entry;
• violence against a representative of authority;
• a crime motivated by hatred;
• a crime against a minor,

the issue of a concurrence of offences or competition between offence classifications must be considered.

53. Court of First Instance: The Main Questions the Court Must Resolve

In a case under Part 2 of Article 108-1, the court must establish the following:

Regarding the event:

• whether physical force was applied;
• when;
• where;
• by whom.

Regarding the consequences:

• what harm was caused;
• whether it constitutes minor harm;
• whether it has been confirmed by expert examination.

Regarding guilt:

• whether intent was present.

Regarding repeated commission:

• whether there were at least two independent episodes;
• whether the situation constitutes a single continuing act;
• whether there was a previous conviction;
• whether there was a previous release from criminal liability.

Regarding the civil claim:

• the existence of harm;
• causation;
• the amount;
• the grounds for liability.

54. Appellate Court Practice

The appellate court may examine:

• the factual circumstances;
• the evidence;
• the legal classification;
• the penalty imposed;
• the civil claim;
• procedural violations.

A particularly promising ground for appeal under subparagraph 7) of Part 2 of Article 108-1 may arise where the court of first instance:

• failed to establish the specific episodes;
• failed to determine the date of the first episode;
• failed to prove the first episode;
• failed to examine the circumstances of the previous proceedings;
• confused repeated commission with recidivism;
• failed to distinguish a continuing offence from repeated commission.

55. Example from Supreme Court Practice: Contradictions in Testimony

In a published case, the Supreme Court overturned part of the charge because the testimony of victims and witnesses substantially diverged from their initial testimony and other evidence.

The court emphasised the need to:

• analyse the initial and subsequent testimony;
• compare it with objective data;
• verify the existence of physical traces;
• establish the reasons for changes in testimony;
• exclude assumptions. (Zakon i Pravo)

For a case under Article 108-1, this means:

if the victim initially states:

“he struck me once,”

but several months later claims:

“he repeatedly beat me,”

the court is obliged to examine the reason for the change in testimony.

56. Judicial Practice of Courts of First Instance

The following issues are the most significant for courts of first instance:

1. Expert Report

Does the harm correspond to the legal concept of minor harm?

2. Time of the Episode

Can the date be established precisely?

3. Independence of the Episodes

Were these separate conflicts?

4. Proof of the First Episode

Is there objective corroboration?

5. Status of the First Case

Was there:

• termination of proceedings;
• reconciliation;
• a judgment;
• refusal to initiate proceedings;
• administrative proceedings?

6. Intent

Has intent been proven?

7. Causation

Was the relevant harm caused specifically by the accused?

57. Distinction from Battery

The separate offence of battery under Article 109-1 of the Criminal Code must be taken into account.

If the application of physical force did not result in minor harm to health, classification under the relevant part of Article 109-1 may be possible.

If, however, the consequences correspond to minor harm to health, the question arises as to the application of Article 108-1.

Therefore, the expert examination and the legal assessment of the consequences are fundamental.

58. Distinction from Harm of Moderate Severity

Harm of moderate severity is defined by Article 3 of the Criminal Code in terms of a longer-term health disorder or a significant permanent loss of general working capacity.

In particular, a long-term health disorder means more than 21 days.

Consequently:

• up to 21 days — may correspond to minor harm;
• more than 21 days — the issue of harm of moderate severity must be examined;
• other consequences may lead to a different legal classification.

(Zakon i Pravo)

59. Distinction from Serious Harm

Serious harm includes, in particular:

• danger to life;
• loss of sight;
• loss of speech;
• loss of hearing;
• loss of an organ;
• loss of the function of an organ;
• permanent disfigurement of the face;
• significant permanent loss of general working capacity;
• complete loss of professional working capacity;
• termination of pregnancy;
• certain mental and behavioural disorders.

(Zakon i Pravo)

Therefore, the initial classification under Article 108-1 does not exclude the subsequent need for reclassification if the expert examination establishes a different nature of the harm.

 60. Cumulative qualification with hooliganism

If the infliction of minor bodily harm is accompanied by a hooligan motive, qualification under subparagraph 5) of part 2 of Article 108-1 may arise.

However, the mere fact that a conflict occurred in a public place does not automatically indicate a hooligan motive.

It is necessary to establish the content of the motive and the circumstances of the conduct.

61. Cumulative qualification involving an offence against multiple victims

Subparagraph 1) of part 2 of Article 108-1 provides for the commission of an act against two or more persons.

This differs from subparagraph 7), “repeated commission.”

For example:

Situation A

One incident, two victims.

Subparagraph 1) of part 2 may apply.

Situation B

Two independent incidents involving one victim.

Subparagraph 7) of part 2 may apply.

Situation C

Two independent incidents and several victims.

It is necessary to examine the combination of the relevant qualifying elements.

62. Repeated commission and two victims are not the same thing

The number of victims does not automatically determine repeated commission.

The key factor is the number of independent acts.

For example, one blow to one victim and one blow to a second victim within the framework of a single incident should not automatically be qualified under subparagraph 7) of part 2.

In this situation, the primary question concerns subparagraph 1) of part 2.

63. Complicity

When an act is committed by several persons, it is necessary to establish:

• who was the perpetrator;
• who was a co-perpetrator;
• who was the organizer;
• who was the instigator;
• who was the accomplice;
• whether there was prior collusion.

The mere fact that several persons were present at the scene does not, by itself, prove complicity.

The Supreme Court emphasizes the need for an individual assessment of the actions of each accomplice. (Zakon i Pravo)

64. Main regulatory legal acts

The following regulatory legal acts are relevant to the category of cases under consideration:

1. Constitution of the Republic of Kazakhstan

In particular:

• Article 13;
• Article 16;
• Article 17;
• Article 77;
• Article 78.

(Zakon i Pravo)

2. Criminal Code of the Republic of Kazakhstan

The main provisions are:

• Article 3 — concepts relating to harm to health;
• Article 11 — categories of criminal offences;
• Article 12 — repeated commission;
• Article 14 — recidivism;
• Articles 28–31 — complicity;
• Articles 39–40 — punishment;
• Article 52 — general principles of sentencing;
• Article 68 — release from criminal liability in connection with reconciliation;
• Article 71 — limitation periods;
• Article 108-1 — intentional infliction of minor bodily harm.

3. Criminal Procedure Code of the Republic of Kazakhstan

The following provisions are of particular importance:

• Article 19 — presumption of innocence;
• Article 25 — assessment of evidence;
• Article 32 — private, private-public, and public prosecution;
• Article 52 — composition of the court;
• Article 72 — private prosecutor;
• provisions concerning the victim;
• provisions concerning civil claims;
• Articles 111–125 — evidence;
• Article 128 — detention;
• provisions concerning preventive measures;
• Article 166 — civil claim;
• Article 191 — inquiry;
• Article 306 — jurisdiction of district courts;
• Article 314 — territorial jurisdiction;
• Article 315 — joinder of cases;
• Articles 408–412 — proceedings in private prosecution cases.

4. Civil Code

In particular:

• Article 9 — methods of protecting civil rights;
• Article 917 — general grounds for liability for causing harm;
• provisions concerning moral harm;
• Article 178 — limitation period for claims;
• Article 179 — application of the limitation period;
• Article 185 — restoration of the limitation period.

Article 178 establishes a general three-year limitation period, while Article 185 provides for exceptional restoration of the limitation period for valid reasons related to the claimant's person. (Zakon i Pravo)

5. Tax Code of 2025

The new Tax Code No. 214-VIII has been in force since January 1, 2026.

Issues concerning state duties are regulated, in particular, by Article 665. (Zakon i Pravo)

65. Regulatory resolutions of the Supreme Court

The following are of particular importance:

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018, “On the Judicial Verdict”

It is relevant to:

• the content of a verdict;
• the assessment of evidence;
• distinguishing between failure to prove an allegation and the absence of the elements of an offence;
• the application of limitation periods;
• the reasoning behind a judicial decision.

The Supreme Court explains that the absence of proof of a qualifying element provided for by law may lead to the conclusion that the elements of the relevant aggravated offence are absent. (Zakon i Pravo)

Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On Judicial Practice in Private Prosecution Cases”

It is particularly important for distinguishing between private and public prosecution procedures. (Zakon i Pravo)

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001

“On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan.”

It is particularly important for:

• reconciliation;
• mediation;
• making amends for harm;
• repeated commission;
• determining whether reconciliation was voluntary. (Zakon i Pravo)

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005

“On the Consideration of a Civil Claim in Criminal Proceedings.”

This is a key instrument concerning:

• civil claims;
• state duties;
• moral harm;
• evidence of the amount of damage;
• appellate consideration of civil claims. (Zakon i Pravo)

66. International legal provisions

International Covenant on Civil and Political Rights

The following provisions are important for the category of cases under consideration:

• Article 7 — prohibition of torture and cruel treatment;
• Article 9 — liberty and security of person;
• Article 14 — fair trial;
• Article 17 — protection of privacy and dignity;
• Article 26 — equality before the law.

The Covenant has been ratified by Kazakhstan. (Zakon i Pravo)

Universal Declaration of Human Rights

The following provisions are of particular importance:

• Article 5;
• Article 8;
• Article 9;
• Article 10;
• Article 11.

(Zakon i Pravo)

Convention against Torture

The Convention against Torture is not directly applicable to the classification under Article 108-1 in an ordinary private conflict between citizens.

However, its provisions are relevant to:

• the prohibition of violence by public officials;
• requirements for investigating allegations of ill-treatment;
• the inadmissibility of evidence obtained through torture;
• the effective protection of the victim.

Kazakhstan acceded to the Convention by Law No. 247 dated June 29, 1998. (Zakon i Pravo)

67. Algorithm for qualification under subparagraph 7) of part 2 of Article 108-1

In practice, it is advisable to examine the case according to the following scheme.

Step 1

Establish the first incident.

Step 2

Establish the second incident.

Step 3

Establish the harm separately for each incident.

Step 4

Conduct an expert assessment.

Step 5

Establish intent.

Step 6

Establish the independence of the incidents.

Step 7

Verify the absence of a single intent that would turn the actions into a continuing offence.

Step 8

Check whether, in relation to the first incident, there was:

• a judgment;
• release from criminal liability.

Step 9

If there was, exclude repeated commission under Article 12.

Step 10

Check the possibility of applying Article 68.

Step 11

Determine the category of the criminal offence.

Step 12

Check the limitation period.

Step 13

Determine jurisdiction.

Step 14

Resolve the issue of a civil claim.

Step 15

Check the admissibility of each key piece of evidence.

68. Example No. 1 — classic repeated commission

On January 10, Person A intentionally struck Person B, causing minor bodily harm.

Before any final procedural decision was made, on January 20, A again intentionally struck B, also causing minor bodily harm.

If both incidents are proven, the question of qualification under subparagraph 7) of part 2 of Article 108-1 may arise.

The key point:

the first incident must not have already been resolved by a judgment or by a decision releasing the person from criminal liability.

69. Example No. 2 — absence of repeated commission

On January 10, a person caused minor bodily harm.

On January 20, the person again caused minor bodily harm.

On March 10, the person was convicted in relation to the first incident.

After that, on April 20, the person again caused minor bodily harm.

The April act does not become repeated commission merely because a previous conviction exists.

The new act must be assessed independently under criminal law, taking into account the institution of recidivism if its conditions are met.

70. Example No. 3 — continuing offence

During a single fight, a person struck the victim several times.

The examination established minor bodily harm.

Despite the large number of blows, if a single intent is proven, this does not, by itself, turn each action into a separate incident constituting repeated commission.

Part 3 of Article 12 of the Criminal Code must be examined.

71. Example No. 4 — two victims

During a single conflict, a person caused minor bodily harm to two people.

In this case, the main issue may concern subparagraph 1) of part 2 of Article 108-1 — an act committed against two or more persons.

This is not equivalent to repeated commission.

72. Example No. 5 — reconciliation after repeated commission

Before any decision was issued, a person committed two independent incidents.

Both incidents were classified under subparagraph 7) of part 2 of Article 108-1.

If the conditions of Article 68 are met and no specific exceptions apply, the possibility of reconciliation may be considered.

The mere existence of repeated commission is not an absolute bar to reconciliation. (Zakon i Pravo)

73. Example No. 6 — repeated infliction of harm after previous reconciliation

A person was previously released from criminal liability under Article 108-1 in connection with reconciliation.

The person then commits a new act under Article 108-1 within the relevant period.

The second act does not constitute repeated commission within the meaning of part 2 of Article 12, because the first case ended with release from criminal liability.

However, the special provision in part 4 of Article 68 may preclude the possibility of being released again in connection with reconciliation. (Zakon i Pravo)

This is one of the most important points for the defence.

74. Typical errors made by the prosecution

Error No. 1

Equating “previously brought to liability” with “repeated commission.”

Error No. 2

Failure to prove the first incident independently.

Error No. 3

Treating a single conflict as two incidents.

Error No. 4

Ignoring part 3 of Article 12 of the Criminal Code.

Error No. 5

Failing to examine the previous judicial decision.

Error No. 6

Relying only on the victim's statements.

Error No. 7

Lack of proper expert confirmation that minor bodily harm was caused.

Error No. 8

Confusing repeated commission with recidivism.

75. Typical errors made by the defence

The defence also makes a number of errors.

Error No. 1

Challenging only the fact of the blow without challenging the qualifying element.

Error No. 2

Failing to demand proof of the first incident.

Error No. 3

Failing to examine the procedural status of the first case.

Error No. 4

Failing to raise the issue of a continuing offence.

Error No. 5

Failing to examine the content of the intent.

Error No. 6

Failing to request an additional or repeat examination when there are grounds for doing so.

Error No. 7

Failing to check the admissibility of digital evidence.

76. Main defence strategies

Depending on the circumstances, the defence may be structured around several independent strategies.

First strategy

Absence of the event.

Second

Absence of the elements of a criminal offence.

Third

Failure to prove the person's involvement.

Fourth

Absence of intent.

Fifth

Absence of minor bodily harm.

Sixth

Absence of a causal link.

Seventh

Failure to prove the first incident.

Eighth

Absence of repeated commission under Article 12.

Ninth

Continuing criminal offence.

Tenth

Existence of circumstances that justify termination of the case or release from criminal liability.

77. Position of the victim

For the victim, on the contrary, it is necessary to document the evidence as quickly as possible.

In particular:

1. medical examination;
2. forensic medical examination;
3. photographs;
4. video recordings;
5. camera footage;
6. contact details of eyewitnesses;
7. correspondence;
8. audio recordings;
9. medical expenses;
10. information about the consequences.

If the dispute concerns repeated commission specifically, each incident must be documented separately.

78. Practical evidence table

79. Systematic conclusion regarding judicial practice at first instance, appellate instance, and the Supreme Court

Based on an analysis of materials published on Zakonpravo, several consistent trends in judicial practice can be identified.

First

Courts must examine the evidence as a whole rather than mechanically accepting the victim's testimony. (Zakon и Право)

Second

The procedural form depends on the legal classification.

Part 1 of Article 108-1 falls under private-public prosecution, while part 2 falls under public prosecution. (Zakon и Право)

Third

Repeated commission requires an independent legal determination.

Article 12 does not permit repeated commission to be established after a previous conviction or release from criminal liability. (Zakon и Право)

Fourth

Reconciliation is not excluded merely because repeated commission is present, but Article 108-1 is subject to a specific restriction where the act is repeated after a previous release in connection with reconciliation. (Zakon и Право)

Fifth

A civil claim may be considered simultaneously with the criminal case, and the victim is exempt from paying the state duty when filing it in criminal proceedings. (Zakon и Право)

80. Application of the principle of the presumption of innocence

For subparagraph 7) of part 2 of Article 108-1, the structure of the accusation is particularly important.

If the following is proven:

the second infliction of harm,

but the following is not proven:

the first independent criminal offence,

then proof of the second incident does not, by itself, replace proof of repeated commission.

In other words:

the elements of part 2 must be proven in their entirety, including all qualifying elements.

A gap in the evidence of repeated commission cannot be filled by an assumption.

81. Application of the principle of interpreting doubts

Where unresolved doubts exist regarding:

• the first incident;
• the independence of the incidents;
• the nature of the intent;
• the causal link;
• the degree of harm;
• the admissibility of evidence,

they must be assessed in accordance with the principles of criminal procedure and the presumption of innocence.

It is particularly important to distinguish between:

“the court is not convinced of innocence”

and

“the prosecution has proven guilt.”

These are fundamentally different standards of judicial analysis.

82. The issue of terminating the case

Depending on the circumstances, the proceedings may be terminated on the grounds provided for by the Criminal Procedure Code.

For example, if the elements of a criminal offence are absent, the relevant ground for termination applies.

The regulatory resolution on judicial verdicts expressly provides that the absence of a qualifying element prescribed by law may lead to the conclusion that the elements of the relevant aggravated offence are absent. (Zakon и Право)

83. If only one incident is proven

If the accusation under subparagraph 7) of part 2 of Article 108-1 is not proven with regard to repeated commission, but the intentional infliction of minor bodily harm is proven, the issue arises of reclassification under the relevant part of Article 108-1.

This is a fundamental point.

The court is not required to choose only between:

the full accusation

and

a complete acquittal,

if a less serious act has in fact been proven and the procedural safeguards have been observed.

However, the specific possibility of reclassification depends on the limits of the trial, the content of the accusation, and the requirements of the Criminal Procedure Code.

84. If the harm does not qualify as minor bodily harm at all

If the examination establishes the absence of legally significant minor bodily harm, it is necessary to consider:

• Article 109-1;
• another offence;
• administrative liability, if the relevant conditions are provided for by law;
• absence of the elements of an offence.

Published judicial practice indicates that where the elements of a criminal offence are absent, the criminal case is subject to termination, while the issue of administrative liability must be assessed separately, taking into account the limitation periods. (Zakon и Право)

85. Significance of the examination for legal classification

Legal classification cannot be based exclusively on the everyday expression:

“severely beat.”

What is legally significant is not the subjective description of the intensity of the conflict, but the established medical result.

Therefore, it is advisable for a lawyer to analyse the expert's conclusion with regard to the following questions:

1. What specific injuries were identified?
2. How old are they?
3. By what mechanism could they have been caused?
4. Could they have arisen under the circumstances described by the victim?
5. Do all the injuries relate to the same incident?
6. What degree of harm to health was established?
7. Are there grounds for establishing a different degree of severity?

86. Role of medical documentation

Medical documentation does not always replace a forensic medical examination.

It may be relevant to:

• confirming the time of seeking medical assistance;
• the initial description of injuries;
• the progression of the condition;
• treatment;
• objective substantiation of complaints;
• verification of testimony.

Initial medical documentation prepared immediately after the conflict is particularly important.

87. Digital evidence

In a modern case under Article 108-1, digital evidence may be decisive:

• WhatsApp;
• Telegram;
• SMS;
• video recordings;
• voice messages;
• photographs;
• electronic correspondence.

However, the court must verify:

• the source;
• integrity;
• authenticity;
• the method of acquisition;
• relevance;
• admissibility.

A screenshot alone, without establishing the origin of the information, is not always sufficient to fully substantiate a disputed circumstance.

88. The problem of an “old conflict”

An accusation of repeated commission is often constructed as follows:

“The defendant had previously beaten the victim.”

The defence must establish:

• when;
• where;
• what specific blow was delivered;
• what injuries were caused;
• whether the victim sought medical assistance;
• whether an examination was conducted;
• whether the incident was registered;
• what procedural decision was made;
• whether a judgment was issued;
• whether reconciliation took place.

Without answers to these questions, the allegation of “repeated commission” remains legally incomplete.

89. Relationship with recidivism

Repeated commission under Article 12 of the Criminal Code and recidivism under Article 14 of the Criminal Code are different concepts.

Repeated commission

It is primarily associated with committing several acts before a final decision is made regarding the previous act.

Recidivism

It is associated with the commission of a new intentional crime by a person who has a conviction for a previously committed intentional crime, as provided for by law.

Therefore, the existence of a conviction may, conversely, exclude repeated commission under a particular offence, while raising the issue of recidivism if the relevant conditions are met.

90. Main legal conclusion

For qualification under subparagraph 7) of part 2 of Article 108-1, it is not sufficient merely to prove that:

“the person had caused harm before.”

It is necessary to prove the following legal structure:

first independent criminal offence + second independent criminal offence + both correspond to the same criminal-law offence + there was no final conviction/release from criminal liability between them that would exclude repeated commission + the acts do not constitute a continuing criminal offence.

This is the core of the legal classification.

 91. Brief Matrix of Legal Assessment

92. Practical Position for a Lawyer

When defending under Part 2 of Article 108-1 of the Criminal Code, I would recommend structuring the analysis of the accusation in the following sequence:

I. Examination of the Medical Element

Has minor harm under Article 3 of the Criminal Code actually been established at all?

II. Examination of the First Episode

Has it been proven by independent evidence?

III. Examination of the Second Episode

Has the second episode been proven?

IV. Examination of Independence

Does the entire matter constitute one continuing event?

V. Examination of Article 12 of the Criminal Code

Was there any previous conviction or release from criminal liability?

VI. Examination of the Form of Guilt

Has intent been proven?

VII. Examination of Causation

Was the harm actually caused by the accused?

VIII. Examination of the Admissibility of Evidence

How was the key evidence obtained?

IX. Examination of Procedural Form

Was the case properly registered and investigated?

X. Examination of Reconciliation

Are there grounds under Article 68?

XI. Examination of the Civil Claim

Have the moral and material damages been proven?

XII. Examination of the Limitation Period

Has the period under Article 71 of the Criminal Code expired?

93. Practical Position of the Victim

For the victim, the optimal evidentiary structure looks different:

1. Record each episode.
2. Obtain medical documentation.
3. Initiate a forensic medical examination.
4. Ensure the preservation of video recordings.
5. Identify witnesses.
6. Submit correspondence.
7. Describe the circumstances of each episode in detail.
8. Separately confirm the first episode.
9. File a civil claim.
10. Document the expenses.
11. Determine the amount of moral damages.
12. Participate in mediation if necessary.
13. Monitor procedural decisions.
14. Appeal unjustified decisions of the criminal prosecution authority.

94. Practical Position on Appeal

In an appeal concerning a case involving repeated commission, it is advisable to structure the arguments not as a general assertion:

“The court examined the case incorrectly,”

but in relation to each mandatory element.

For example:

Argument 1

The court did not establish the independence of the first episode.

Argument 2

The court did not identify the evidence supporting the first episode.

Argument 3

The court did not examine the ruling in the previous case.

Argument 4

The court did not assess Part 2 of Article 12 of the Criminal Code.

Argument 5

The court did not distinguish repeated commission from a continuing offence.

Argument 6

The court did not resolve the contradictions between the testimonies.

Argument 7

The court relied on inadmissible evidence as the basis for its judgment.

Argument 8

The court incorrectly determined the degree of severity of the harm.

95. Conclusion

Subparagraph 7) of Part 2 of Article 108-1 of the Criminal Code of the Republic of Kazakhstan — “repeatedly” — is not a simple indication of the fact of a previous conflict or the previous prosecution of a person.

This is an independent qualifying element, the content of which is determined primarily through Article 12 of the Criminal Code.

The legal construction requires the establishment of several independent acts, each of which must meet the requirements of criminal law.

In this regard:

1. A previous conviction excludes repeated commission.
2. A previous release from criminal liability also excludes repeated commission.
3. A continuing criminal offence does not constitute repeated commission.
4. Two independent episodes committed before the first case has been finally resolved may constitute repeated commission.
5. Part 2 of Article 108-1 falls under public prosecution.
6. The investigation is conducted in pre-trial proceedings.
7. General territorial jurisdiction is determined by the place where the offence was committed.
8. The case is generally heard by a district court or an equivalent court.
9. A forensic medical examination is of key importance in establishing the degree of harm.
10. Repeated commission must be proven separately.
11. Reconciliation under Article 68 is fundamentally possible even in cases involving repeated commission, but a special restriction applies to the repeated commission of an offence under Articles 108-1/109-1 after a previous release from criminal liability on the grounds of reconciliation.
12. A civil claim for material and moral damages may be considered directly within the criminal proceedings.
13. A victim who files a civil claim in criminal proceedings is exempt from paying state duty.
14. When an independent civil claim is filed, the civil-law regime governing limitation periods applies.
15. The general limitation period for filing a claim is three years.
16. Restoration of the limitation period is possible in exceptional cases under Article 185 of the Civil Code.
17. The judicial practice of the Supreme Court of the Republic of Kazakhstan consistently requires evidence to be analysed as a whole and prohibits basing a finding of guilt on assumptions.

Main Links to Zakonpravo.kz

Article 108-1 of the Criminal Code of the Republic of Kazakhstan — Intentional Infliction of Minor Harm to Health

Article 12 of the Criminal Code of the Republic of Kazakhstan — Repeated Commission of Criminal Offences

Article 68 of the Criminal Code of the Republic of Kazakhstan — Release from Criminal Liability in Connection with Reconciliation

Article 32 of the Criminal Procedure Code of the Republic of Kazakhstan — Cases of Private, Private-Public and Public Prosecution

Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan — Criminal Cases Within the Jurisdiction of a District Court or an Equivalent Court

Article 314 of the Criminal Procedure Code of the Republic of Kazakhstan — Territorial Jurisdiction of Criminal Cases

Article 408 of the Criminal Procedure Code of the Republic of Kazakhstan — Initiation of Private Prosecution

Article 125 of the Criminal Procedure Code of the Republic of Kazakhstan — Assessment of Evidence

Article 166 of the Criminal Procedure Code of the Republic of Kazakhstan — Civil Claims Considered in Criminal Proceedings

Normative Resolution of the Supreme Court of the Republic of Kazakhstan on the Consideration of Civil Claims in Criminal Proceedings

Normative Resolution of the Supreme Court of the Republic of Kazakhstan on Judicial Practice in the Application of Article 68 of the Criminal Code

Article 178 of the Civil Code of the Republic of Kazakhstan — Limitation Periods

Article 179 of the Civil Code of the Republic of Kazakhstan — Application of the Limitation Period

Article 185 of the Civil Code of the Republic of Kazakhstan — Restoration of the Limitation Period

Article 665 of the Tax Code of the Republic of Kazakhstan — State Duty Rates in Courts

Constitution of the Republic of Kazakhstan

International Covenant on Civil and Political Rights

Universal Declaration of Human Rights

Final Formula for Practical Application

Subparagraph 7) of Part 2 of Article 108-1 of the Criminal Code → Article 12 of the Criminal Code → at least two independent episodes → each episode must be proven → each episode must satisfy the requirements for minor harm → intent → causation → absence of a previous conviction/release from criminal liability in respect of the first episode → absence of a continuing offence → public prosecution → pre-trial investigation → district court → possibility of a civil claim → examination of Article 68 of the Criminal Code → examination of Article 71 of the Criminal Code.

It is precisely this sequence that makes it possible to correctly determine whether the qualified offence based on repeated commission has actually been proven, or whether only an individual instance of infliction of minor harm to health has been established.

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